An apparent off-hand comment in your trial brief can end up sinking your claim to a measure of damages.
Plaintiff’s closing brief to the trial court contained the following statement: “Should the court find that [defendant] and its authorized agents were negligent or made negligent misrepresentations about the project, the damages are essentially the same as the damages claimed by [plaintiff] in his breach of contract claim.” In fact, however, the appellate court noted that the damages were not the same, and in the unpublished portion of the decision, ruled that plaintiff’s trial brief “did in fact concede his contract and tort damages were the same. As a result, he cannot show what further he would have gained if the trial court had determined Polyzos committed negligent misrepresentation.”
The dispute concerned a contract for custom cabinets. The homeowner was dissatisfied with the finished product (the disagreement resulted in competing charges of assault and battery) and filed suit for breach of contract and negligent misrepresentation.
The court ruled that contract damages are either out-of-pocket cost of completion (what it would cost to finish the job as specified in the original contract) or expectation damages (the difference between the value of what you got and the value of what you bargained for) but not both. Under these facts, the Court of Appeal ruled that contract damages were limited to the expectation damages. The only way for the plaintiff to also receive the out-of-pocket damages would be to prevail on the negligent misrepresentation theory. However, since the trial brief mistakenly asserted that the damages for the two claims “are essentially the same,” the plaintiff had waived the negligent misrepresentation claim.